IN THE CASE OF:	  

	BOARD DATE:	  3 June 2008

	DOCKET NUMBER:  AR20080005572 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests an upgrade of his discharge. 

2.  The applicant states that his discharge was inequitable because it was based on one isolated incident during 33 months of service with no adverse actions.

3.  The applicant provided a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 5 September 1991; and an undated character reference letter, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.



2.  The applicant's records show that he enlisted in the Regular Army for a period of 4 years on 17 February 1989.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 13B (Canon Crewmember).  The highest rank/grade he attained during his military service was specialist (SPC)/E-4.

3.  The applicant's records show he was awarded the Army Service Ribbon, the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), and the Expert Marksmanship Qualification Badge with Grenade Bar.  His records do not show any significant acts of valor during his military service.

4.  On 8 January 1991, the applicant departed his unit in an absent without leave (AWOL) status and was subsequently dropped from the Army rolls on 7 February 1991.  He surrendered to military authorities and returned to military control at Fort Bragg, North Carolina, on 17 July 1991.  

5.  On 25 July 1991, court-martial charges were preferred against the applicant for one specification of being AWOL during the period from on or about 8 January 1991 through on or about 17 July 1991.  

6.  On 25 July 1991, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial and the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ); of the possible effects of an under other than honorable conditions discharge; and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service, in lieu of trial by court-martial, in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

7.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or a dishonorable discharge.  He further acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. 





8.  On 13 August 1991, the applicant’s immediate commander remarked that the applicant’s conduct had rendered him triable by court-martial under circumstances which could lead to a bad conduct discharge or a dishonorable discharge.  Based on his record, punishment was expected to have minimal rehabilitative effect.  Discharge at the time was in the best interest of the Army.  The immediate commander recommended approval of the applicant’s discharge with an Under Other Than Honorable Conditions Discharge Certificate.

9.  On 16 August 1991, the separation authority approved the applicant's request for discharge for the good of the service, in accordance with chapter 10 of Army Regulation 635-200, and directed he receive an Under Other Than Honorable Conditions Discharge Certificate and be reduced to private/E-1.  Accordingly, the applicant was discharged on 5 September 1991.  The DD Form 214 he was issued shows he was discharged for the good of the service, under the provisions of chapter 10 of Army Regulation 635-200, with an under other than honorable conditions discharge character of service.  This form further shows he completed 2 years and 9 days of creditable military service and had 189 days of lost time due to AWOL.

10.  In an undated character reference letter, the applicant’s pastor states that he can personally attest to the marked change in the applicant’s character since his discharge and that the applicant is actively involved in volunteer and education programs at his church.

11.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

13.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

14.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded.

2.  The character reference letter submitted by the applicant’s pastor on the applicant’s behalf was noted.  However, post-service achievements are not sufficiently mitigating to grant the applicant relief in this case.

3.  The applicant’s records show he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant knowingly, willingly, and voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general or an honorable discharge. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.


								XXX
      _______________________
      	CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080005572



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ABCMR Record of Proceedings (cont)                                         AR20080005572



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